Motion for Writ in In The Matter Of The Arbitration Attempted To Be Had Between Old Republic Insurance Company v. Wei Li| Trellis.Law

On April 12, 2024 a Complaint,Petition was filed involving a dispute between In The Matter Of The Arbitration Attempted To Be Had Between Old Republic Insurance Company, and Wei Li, for Torts - Motor Vehicle in the District Court of Queens County.

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FILED: QUEENS COUNTY CLERK 04/12/2024 11:39 AM INDEX NO. 707865/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
---------------------------------------------------------------X
In the Matter of the Arbitration Attempted to be had
Between OLD REPUBLIC INSURANCE
COMPANY, PETITION TO
TEMPORARILY STAY
Petitioner, ARBITRATION

-against-

WEI LI,

Respondent.
--------------------------------------------------------------- X
MICHAEL HEMWAY, an attorney duly admitted to practice law in the State of New

York, affirms the following to be true, upon information and belief, under the penalties for perjury:

1. I am associated with the law firm of GARTNER + BLOOM, P.C., attorneys for

Petitioner, OLD REPUBLIC INSURANCE COMPANY (hereinafter referred to as “Petitioner” or

“ORIC”), in the above-captioned matter. As such, I am familiar with the facts of this case based

upon the contents of the file maintained by this office.

2. This Petition is submitted in support of ORIC’s application seeking an Order:

a. Temporarily Staying the Arbitration on April 16, 2024, the issuance of any award
and the enforcement of any such award flowing therefrom, due, in part, to the recent filing
of a RICO lawsuit against Respondent’s treating medical provider; and

b. Pursuant to CPLR § 3102(c), compelling LI to (i) appear for an Examination Under
Oath; and (ii) appear for an Independent Medical Examination(s); and

c. For such other, further, and different relief as this Court deems just
and proper.

NATURE OF THE ACTION

3. This matter arises out of an alleged motor-vehicle accident that occurred on

September 20, 2020 (“Accident”). LI claims underinsured motorist benefits for personal injuries

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he alleges to have sustained in the Accident, under an insurance policy that ORIC issued to Uber

USA, LLC, number MWTB 313795 20, which was in full force and effect on September 20, 2020,

(“Policy”). A copy of the relevant portions of the ORIC Policy are annexed hereto as Exhibit “A”.

4. Pursuant to said Policy, ORIC agreed to pay certain sums for injury sustained by

the Policy’s insured or a passenger in a covered vehicle on the date of loss, caused by an accident

arising out of the ownership, maintenance, or use of an uninsured automobile. ORIC provides

UM/SUM coverage of $250,000. See Exhibit A.

SUMMARY OF ARGUMENT

5. Respondent’s treating medical provider, Dr. Andrew Merola, was named as a

defendant in a RICO lawsuit that was brought in Eastern District of New York. Based on the

allegations set forth in the Complaint of the RICO lawsuit, Respondent must be directed to appear

for an examination under oath (“EUO”) and independent medical examinations (“IME”) so

Petitioner can properly evaluate Respondent’s claims in light of the new allegations, and the

pattern of behavior alleged in the RICO lawsuit. Additionally, appearing for an EUO and IME are

expressly set forth in the ORIC policy. Respondent’s failure to appear for an EUO and IME

warrants a temporary stay of these proceedings.

FACTS AND PROCEDURAL HISTORY

6. The alleged incident occurred on September 20, 2020, on 907D westbound Belt

Parkway at its intersection with 130th Street in Queens County, New York. A copy of the Police

Accident Report is annexed hereto as “Exhibit B”.

7. On February 10, 2023, ORIC served their combined discovery demands on

Respondent, which included a Demand for a Verified Bill of Particulars, Notice for Discovery and

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Inspection, Notice for EUO, Notice for Physical Examination, and Demand for Prior Pleadings

and Discovery. A copy of Petitioner’s Combined Demands is annexed hereto as Exhibit “C”.

8. On March 1, 2024, Respondent’s treating physician, Dr. Andrew Merola, was

named as a defendant in a RICO lawsuit. A copy of the aforementioned Complaint, filed on March

1, 2024, is annexed hereto as Exhibit “D”.1 The allegations as to Dr. Merola include “knowingly

profited by furthering the fraudulent treatment protocol by falsely submitting evaluations that

opined claimants were disabled when they were not, and by performing unnecessary procedures.”

Id.

9. Upon learning of the RICO lawsuit, Petitioner requested an adjournment of the

arbitration. A conference was held with the American Arbitration Association (“AAA”) arbitrator

on April 4, 2024, where Petitioner’s request for an adjournment was denied.

10. The arbitration hearing with the AAA is scheduled for April 16, 2024, warranting

an immediate stay of the arbitration and the issuance of a decision so the necessary discovery can

take place pursuant to the Policy.

ARGUMENT

11. On March 1, 2024, Respondent’s treating medical provider, Dr. Andrew Merola,

was named as a defendant in a RICO lawsuit which included numerous medical providers and

carriers. See, Exhibit D. The filing of the RICO lawsuit prompted a re-evaluation of Respondent’s

claims regarding his alleged treatment and whether it fits into an alleged pattern of events that is

typical for the defendants in the RICO lawsuit.

12. Similarly, it is Petitioner’s position that the pending fraud lawsuit against

Respondent’s treating medical provider should be resolved before this arbitration occurs as part of

1
Dr. Merola was alleged to have committed Common Law Fraud, Aiding and Abetting Fraud, RICO Violation of 18
U.S.C. § 1962(c), and other severe criminal acts listed in the attached Complaint. See Exhibit “D”.

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Petitioner’s potential defense at arbitration is that the Respondent’s injuries and subsequent

surgery were not medically necessary and whether same was potentially fraudulent.

13. To be sure, as alleged in the RICO lawsuit, Dr. Merola “knowingly profited by

furthering the fraudulent treatment protocol by falsely submitting evaluations that opined

claimants were disabled when they were not, and by performing unnecessary procedures.” See,

Exhibit D. Furthermore, as part of Dr. Merola’s treatment of the Respondent, a narrative report

was submitted, which is annexed hereto as Exhibit “E”. Per the narrative report, Dr. Merola

opined that “[w]ithin a reasonable degree of medical certainty the accident occurring on September

20, 2020, is the competent cause of injuries sustained to Mr. Wei Li’s low back and neck requiring

surgical intervention to the lumbar spine. Mr. Li’s injuries are permanent in nature.” Id.

14. In order for Petitioner to determine whether Dr. Merola’s treatment of Respondent

fits into a pattern of behavior that is alleged in the RICO lawsuit, an EUO and IME are necessary.

Without an EUO and IME, Petitioner will not be able to determine whether the surgery performed

by Dr. Merola was medically necessary or whether it was part of a pattern of behavior alleged in

the RICO lawsuit.

15. While Petitioner is entitled to an EUO and IME based on the reasons set forth

above, ORIC’s statutory right to direct LI to appear for an EUO and IME is beyond dispute.

16. Pursuant to the “Conditions” of Section 60-2.3 of Title 11 of the New York Codes,

Rules and Regulations, “Requirements for sum endorsements,” every motor vehicle liability

insurance policy shall state that the insured shall submit to examination(s) under oath and

independent medical examination(s), as required by the insurer. Specifically, Section 60-2.3

requires that the UM/SUM endorsement state the following:

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2. Notice and Proof of Claim: As soon as practicable, the insured or
other person making claim shall give us written notice of claim
under this SUM coverage.

(i) As soon as practicable after our written request, the insured
or other person making claim shall give us written proof of
claim, under oath if required, including full particulars of the
nature and extent of the injuries, treatment, and other details we
need to determine the SUM amount payable.

(ii) The insured and every other person making claim
hereunder shall, as may reasonably be required, submit to
examinations under oath by any person we name and
subscribe the same. Proof of claim shall be made upon forms
we furnish unless we fail to furnish such forms within 15
calendar days after receiving notice of claim.

3. Medical Reports: The insured shall submit to physical
examinations by physicians we select when and as often as we
may reasonably require. The insured, or in the event of the
insured's incapacity, the insured's legal representative (or in the
event of the insured's death, the insured's legal representative or the
person or persons entitled to sue therefor), shall upon each request
from us authorize us to obtain copies of relevant medical reports
and records.

11 NYCRR § 60-2.3 (emphasis added).

17. Similarly, ORIC’s Policy contains the requisite language required by Section 60-2

and provides that, upon request by ORIC, any person making a claim for underinsured benefits

under the Policy must submit for an EUO and IME. Specifically, the Policy states:

3. Notice and Proof of Claim. Within 90 days or as soon as
practicable, the insured or other person making claim shall
give us written notice of claim under this UM endorsement.

As soon as practicable after our written request, the insured
or other person making any claim shall give us written proof
of claim, under oath if required, including full particulars of
the nature and extent of the injuries, treatment, and other
details we need to determine the UM amount payable
hereunder.

The insured and every other person making claim
hereunder shall, as may reasonably be required, submit

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to examinations under oath by any person named by us
and subscribe the same. Proof of claim shall be made upon
forms we furnish unless we fail to furnish such forms within
15 days after receiving notice of claim.

(emph. added)

4. Medical Reports. The injured person shall submit to
physical examinations by physicians we select when and
as often as we may reasonably require. The insured, or in
the event of the insured’s incapacity, such insured’s legal
representative, or in the event of the insured’s death, the
insured’s legal representative or the person or persons
entitled to sue therefor, shall upon our request authorize
us, when and as often as we may reasonably require, to
obtain relevant medical reports and copies of records.

(emph. added)

18. Respondent’s refusal to appear for an EUO and IME is in direct contravention of

New York State Law and the Conditions of ORIC’s policy.

19. As is clearly demonstrated, Petitioner is entitled to conduct an EUO and IME of

Respondent for the reasons stated supra. Additionally, it is now incumbent on Petitioner to

investigate whether the treatment herein comports with the allegations made in the RICO lawsuit

and the alleged pattern of behavior.

20. Additionally, as part of Respondent’s arbitration statement (exchanged on April 3,

2024), Respondent exchanged a dash-camera video of the incident. This was the first time that the

Petitioner became aware that there was a video of the incident. Petitioner was blindsided with this

information and was not able to retain an expert and have said expert opine on the video and how

the mechanics of the incident impact Respondent’s alleged injuries.

21. Based upon the foregoing, ORIC respectfully submits that the arbitration scheduled

for April 16, 2024, be temporarily stayed along with the issuance of a decision based on the filing

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of the RICO lawsuit as to Respondent’s treating physician and direct Respondent to appear for an

Examination Under Oath and an Independent Medical Examination(s).

WHEREFORE, it is respectfully requested that an Order be made and entered granting

the Petition to Temporarily Stay the Arbitration, and for such other and further relief that this Court

may deem just and proper.

Dated: April 12, 2024
New York, New York

GARTNER + BLOOM, P.C.

______________________________
MICHAEL J. HEMWAY
Attorneys for Petitioner
OLD REPUBLIC INSURANCE
COMPANY
801 Second Avenue, 11th Floor
New York, New York 10017
(212) 759-5800

To: Kelsey Crowley, Esq.
CAESAR AND NAPOLI, P.C.
Attorneys for Respondent
WEI LI
233 Broadway, Suite 2348
New York, New York 10279
(212) 226-3224

American Arbitration Association
32 Old Slip, 33rd Floor
New York, New York 10005

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ATTORNEY'S CERTIFICATION

I, MICHAEL J. HEMWAY, an attorney duly admitted to practice law before the courts of

the State of New York, hereby certify that the attached document complies with the word count

limit set forth in Uniform Rule 202.8-b as it contains 1,809 words, excluding the caption, table of

contents, table of authorities, and signature block. In preparing this certification, I have relied on

the word count of the word-processing system used to prepare the attached document.

DATED: April 12, 2024
New York, New York

__________________________________
MICHAEL J. HEMWAY, ESQ.

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Timothy J. Dufficy Track Judge’s New Case

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April 12, 2024

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April 12, 2024

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Complaint,Petition: In The Matter Of The Arbitration Attempted To Be Had Between Old Republic Insurance Company v. Wei Li

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